Texas election maps blocked (UPDATE)

UPDATED Wednesday a.m. Texas Attorney General Greg Abbott announced he will take “immediate steps” to appeal this decision to the Supreme Court. His statement can be read here.

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Finding that the Texas state legislature tried to make it look as if it were not drawing new election districts to cut down on minority voters’ strength at the polls, but actually did just that, a three-judge U.S. District Court in Washington on Tuesday refused to give legal clearance to new maps for electing the state’s thirty-six members of the U.S. House of Representatives and both houses of its state legislative body. In a seventy-two-page ruling, the District Court applied Section 5 of the 1965 Voting Rights Act, but did so without any ruling on the growing complaint of states covered by that law that it is unconstitutional. That, however, is an issue the Supreme Court is likely to face in its next Term.

The decision came in four parts: the main seventy-two-page opinion representing a mixture of views of the three judges, along with a separate majority opinion, one dissenting opinion, and a lengthy factual appendix. The overall document runs to 154 pages. The ruling will not affect this year’s elections in Texas, because those are being held under “interim” maps drawn up — and no longer in dispute — by a separate three-judge District Court in San Antonio. The “interim” redistricting plans were crafted by those three judges after the Supreme Court last January struck down a prior “interim” substitute for the legislature’s maps.

Because of a very sharp increase, reflected in the 2010 Census, in the Hispanic population in Texas, the state gained four seats in the House — to make a total of thirty-six. And, as a result of the population shifts, not only the House delegation, but the districting maps for the two houses of the state legislature, had to be redrawn to avoid violating the constitutional mandate of one person, one vote. The controversy over the legislature’s version of the new maps unfolded late last year and early this year in the Supreme Court, and over the past year in the two separate District Courts. The controversy may not yet be over, because Texas has the right to file a direct appeal to the Supreme Court to challenge Tuesday’s ruling nullifying the state’s maps.

Moreover, while Texas did not argue explicitly in the Washington case that Section 5 is unconstitutional, it did raise concerns about it, saying that invalidation of the state’s maps would cause constitutional tension with the state’s sovereign powers over legislative districting. Ultimately, then, the fate of Section 5 may well hang over this case, as well.

Because Texas is a state that is covered by Section 5, it cannot make any change in any of its election laws unless it first gets official clearance in Washington — either from the District Court or from the Justice Department. Texas opted to seek clearance from the District Court, but that effort failed Tuesday. Without clearance, the new maps cannot be put into effect as they are presently drafted.

If Tuesday’s ruling withstands an appeal, the legislature would have to draw up a new House plan, and must include at least one new district in which minority voters would be able to elect the candidate of their choice — either because of the numbers of their own ethnic group in a district, or in coalition efforts with non-minority voters willing to make electoral alliances with them. The legislature also would have to draw up a new plan for the state senate seats, because the District Court found that the legislature had moved to pare down the electoral strength of Latino voters in a Fort Worth district. And the legislature also would have to draw up a new plan for the state house seats, because the Court found that the legislature had eliminated a few districts in which minorities had had the ability to prevail, and did not replace them with new so-called “ability districts” elsewhere in the state.

The main opinion, written for the three judges by Circuit Judge Thomas B. Griffith, amounted to a scathing indictment of the strategic efforts of the state legislature to draw new maps to favor Republican candidates, but in the process succeeding in a significant impairment of the voting strength of Latino and black voters. The Griffith opinion was joined in full by District Judge Beryl A. Howell and joined in substantial part by District Judge Rosemary M. Collyer. (A three-judge District Court was assembled for the review of the new maps under Section 5 of the Voting Rights Act, because that law calls for a special panel to rule on redistricting challenges. The appeal of such a court’s decisions goes directly to the Supreme Court, with a mandate to act on a speeded-up schedule.)

Judge Griffith at several points in the main opinion sharply criticized the lengthy history of defeats for Texas in the courts on its redistricting plans, concluding that history is not on the state’s side. But, while finding that the legislature did not set out with an explicitly racial or ethnic bias against minority voters, the tactics the leaders of the legislature used amounted — at least as to the congressional and state Senate plans — to a discriminatory purpose. The congressional plan also was found to have the effect of scaling back on minorities’ voting strength for seats in that chamber, and the state house plan for the same reason. The end result was that Texas, the Court concluded, had not met its burden of justifying the three plans under Section 5.

The most critical comments in the Griffith opinion come in analyzing how the legislature had reacted to the sudden increase in the Hispanic population — against a background of voting within that bloc for Democratic candidates. While the legislature’s leaders insisted in court hearings and filings that their primary goal was to protect Republican incumbents, the District Court found that it used several sleight-of-hand redistricting gestures in order to bring about the end result that Latino voters would actually lose electoral strength in the state. The opinion cited “an abundance of evidence” that the legislature had used “various techniques to maintain the semblance of Hispanic voting power…while decreasing its effectiveness.”

The District Court stressed that its decision does not require Texas to create districting maps that give proportional representation to minority blocs within the state; rather, it said, the aim of the decision was solely to carry out the dominant goal of Section 5, to assure that new maps do not cut back on minority voters’ opportunity to elect candidates of their choice — either in districts made up of minorities holding a population majority, or in “coalition” or “crossover” districts.

The case is Texas v. United States (District docket 11-1303). The Obama Administration had joined with a wide array of minority voters’ advocacy organizations in challenging at least some parts of the Texas maps.

The Obama Administration also is pursuing, in another District Court in Washington, a separate challenge to a new voter ID law adopted in Texas. That case is awaiting a decision by a three-judge District panel. Texas is arguing in that case that, if its voter ID law is struck down, that will demonstrate that Section 5 intrudes too deeply into the prerogatives of states to control their own elections, and thus is unconstitutional.

Two challenges to the constitutionality of Section 5 are already pending in the Supreme Court (dockets 12-81 and 12-96). Neither of those cases has yet been scheduled for a Conference of the Justices. The Obama Administration’s responses to both are not due until next month.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.